Opinion
Case No: 04-22407-CIV-SEITZ/McALILEY.
March 14, 2006
REPORT AND RECOMMENDATION ON PETITIONER'S APPLICATION FOR ATTORNEY'S FEES, COSTS, AND OTHER EXPENSES
THIS CAUSE comes before the Court upon Petitioner's Application for Fees, Costs, and Other Expenses Under the Equal Access to Justice Act (the "Motion") [DE 15, 8/11/05]. Respondents filed a Response in opposition, [DE 18], and Petitioner filed a Reply. [DE 20]. The Motion was referred to the undersigned. [DE 16]. For the reasons set forth below, I recommend that fees, costs, and expenses be awarded as provided herein.
I. Background.
On September 24, 2004, Ghassan Elkhatib ("Petitioner") filed a Petition for Writ of Mandamus (the "Petition") requesting that the Court order Respondents to adjudicate Petitioner's pending immigration application. [DE 1]. Petitioner filed an application to adjust his status for permanent residency (the "Application") with Respondents on June 28, 2001, and as of the date the Petition was filed, Respondents had not processed the Application. In his Petition, Petitioner sought to compel Respondents to resolve the pending Application. [Id.].
On June 6, 2005, the Honorable Patricia A. Seitz granted the Petition and established certain deadlines by which Respondents had to resolve the Application. [DE 10]. Respondents then filed a Motion to Alter or Amend the Judgment ("Respondents' Motion"), claiming the Court was divested of subject matter jurisdiction, pursuant to the enactment of the REAL ID Act of 2005, Pub.L. 109-13, Div. B., 119 Stat. 231 ("RIDA"). [DE I 1]. After the Respondents' Motion was fully briefed, the Court denied Respondents' Motion. [DE 14].
Petitioner then filed with this Court the Motion asking to recover, pursuant to the EAJA, 28 U.S.C. § 2412(d), attorney's fees, costs, and expenses incurred in this matter. Therein, Petitioner claimed: (1) $9,122.27 in attorney's fees, and (2) $667.72 in costs and expenses. [DE 15, p. 13]. In his Reply, Petitioner submitted supplemental time sheets to request attorney's fees in preparing the Reply; he also withdrew, after Respondents objected in their response memorandum, a request for payment for 1.5 hours devoted to preparing Petitioner for an interview with the FBI. Accordingly, Petitioner now seeks: (1) $9,445.72 in attorney's fees, and (2) $667.72 in costs and expenses. [DE 20, p. 5].
The Motion fails to comply with several provisions of Local Rule 7.3.A, as it does not include: a statement that counsel conferred in a good faith effort to resolve by agreement the issues raised in the Motion, a certification that counsel fully reviewed the time records and supporting data and that the Motion is well grounded in fact, a statement whether a hearing is requested, a disclosure of the fee agreement, and counsel's verification. As these items are not at the heart of the dispute raised by the Motion, the Court will overlook these omissions in this instance.
The only dispute remaining between the parties is whether Petitioner's counsel, Tammy Fox-Isicoff, Esq., is entitled to be compensated at an enhanced hourly rate under the EAJA.
Petitioner does not seek an enhanced rate for his other attorney, Ms. Susan P. Worm. Moreover, other findings necessary to an award of attorney's fees under the EAJA are not in dispute, e.g., Petitioner is a prevailing party, Respondent's position was not substantially justified, special circumstances do not make an award of fees unjust, Petitioner's net worth does not preclude his recovery of fees, Petitioner's counsel expended a reasonable amount of time on this litigation, and Petitioner merits a cost-of-living increase to the statutory hourly rate. [See DE 18].
II. Analysis.
A. Attorney's fees.
The starting point for determining the amount of reasonable attorney's fees is the number of hours reasonably expended during the litigation multiplied by a reasonable hourly rate, a calculation referred to as the "lodestar." Norman v. Housing Auth. of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988) (citing Hensley v. Ekerhart, 461 U.S. 424, 433 (1983)). The "fee applicant bears the burden of establishing entitlement and documenting the appropriate hours and hourly rates." Norman, 836 F.2d at 1303 (citing Hensley, 461 U.S. at 437). In meeting this burden, the movant must have records that "show the time spent on the different claims, and the general subject matter of the time expenditures ought to be set out with sufficient particularity so that the district court can assess the time claimed for each activity." Id.; see also ACLU of Ga. v. Barnes, 168 F.3d 423, 427 (11th Cir. 1999).
1. Hours expended.
Petitioner filed amended time sheets with the Court to support his claim for attorney's fees for 12.5 and 32.0 hours of legal services provided by his two attorneys, Tammy Fox-Isicoff, Esq. and Susan P. Worm, Esq., respectively. [DE 20]. Respondent does not object to the number of hours documented in those amended time sheets. On this record, the Court concludes the time Petitioner's attorneys devoted to this matter was reasonable, including the time devoted to preparation of their Reply. Thus, the total hours reasonably expended are: Tammy Fox-Isicoff (12.5 hours) and Susan P. Worm (32.0 hours) for a total of 44.5 hours.
Petitioner supplemented his request to recover the time spent preparing his Reply, to which Respondents have not objected. The Court finds that it was reasonable for Tammy Fox-Isicoff to devote.5 hours, and for Susan P. Worm to devote 4.0 hours to preparation of the Reply. See, e.g., Smith v. Freeman, 921 F.2d 1120, 1124 (10th Cir. 1990) (remanding case to calculate recovery for filing reply); Welsh v. Halter, No. 99 C 8049, 2004 U.S. Dist. LEXIS 13289, *7-8 (N.D. Ill. July 12, 2004) (permitting recovery of attorney's fees for filing reply brief).
2. Reasonable hourly rate with cost-of-living adjustment.
In determining a reasonable hourly rate, the Court must look to the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation. Norman, 836 F.2d at 1299. As with the number of hours claimed, Petitioner "bears the burden of producing satisfactory evidence that the requested rate is consistent with prevailing market rates." Bruland v. Howerton, 742 F. Supp. 629, 636 (S.D. Fla. 1990). Petitioner's requested rates are as follows:
Ms. Fox-Isicoff: $350.00 per hour Ms. Worm: $158.46 per hour
Ms. Worm's requested rate is the statutory rate, plus the cost-of-living increase, [DE 15, p. 10], which Respondent agrees is appropriate. [DE 18, p. 8]. Respondent, however, disagrees with Ms. Fox-Isicofrs requested enhanced rate.
Petitioner supports his request for an enhanced hourly rate for Ms. Fox-Isicoff with affidavits of two knowledgeable attorneys, who opine that the hourly rate charged by Ms. Fox-Isicoff ($350.00) is the prevailing market rate for lawyers in this community with her expertise, skills, and experience. [DE 15, Ex. 2, 3]. Moreover, Ms. Fox-Isicoff provides justification for her rate with an affidavit detailing her education and experience. [DE 15, Ex. I]. On this record, I find the rate charged by Ms. Fox-Isicoff falls within the prevailing rates for comparable counsel. See Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994) (quoting Norman, 836 F.2d at 1303) (a court is itself an expert on the question [of reasonable hourly rates] and may consider its own knowledge and experience concerning reasonable and proper fees and may form an independent judgment either with or without the aid of witnesses as to value").
The EAJA, however, limits the hourly rate by which attorneys fees will be compensated as follows:
The amount of fees awarded under this subsection shall be based upon prevailing market rates for the kind and quality of services furnished, except that . . . (ii) attorney fees shall not be awarded in excess of $125 per hour unless the court determines that an increase in the cost of living or a special factor, such as limited availability of qualified attorneys for the proceedings involved, justifies a higher fee.28 U.S.C. § 2412(d)(2)(A). As the market rate ($350) is greater than the statutory cap ($125), this Court must determine whether an upward adjustment is warranted to take into account an increase in the cost of living or a special factor. Meyer v. Sullivan, 958 F.2d 1029, 1033-34 (11th Cir. 1992).
Petitioner argues Ms. Fox-Isicoff's distinctive knowledge and specialized skill in immigration law and the difficulty of the immigration law questions raised in this case amount to a "special factor" that warrants compensation above the $125 statutory maximum. Although Ms. Fox-Isicoff is indisputably an expert in immigration law, case law does not support Petitioner's contention that counsel's expertise amounts to a "special factor," nor does the record support the conclusion that the issues of immigration law were so complex as to amount to a "special factor."
The Supreme Court has held that "a special factor," such as "limited availability of qualified attorneys for the proceedings involved" refers to "attorneys having some distinctive knowledge or specialized skill needful for the litigation in question — as opposed to an extraordinary level of general lawyerly knowledge and ability useful in all litigation." Pierce v. Underwood, 487 U.S. 552, 572 (1988). "[A]n identifiable practice specialty such as patent law, or knowledge of foreign law or language" are examples of distinctive knowledge and specialized skill. Id.
The notion that an attorney's expertise in immigration law constitutes a "special factor" under the EAJA has been expressly rejected. See Johnson v. Gonzales, 416 F.3d 205, 213 (3d Cir. 2005); Perales v. Casillas, 950 F.2d 1066, 1079 (5th Cir. 1992). This Petition presented a relatively straightforward claim seeking a writ of mandamus. [See DE 1]. Mandamus is not unique to the immigration context. See, e.g., Cash v. Barnhart, 327 F.3d 1252, 1254 (11th Cir. 2003) (writ of mandamus sought against the Commissioner of Social Security); United States v. Valenti, 999 F.2d 1425, 1427 (11th Cir. 1993) (writ of mandamus sought against United States District Court). Here, the only issue in dispute was whether Respondents had a clear, non-discretionary duty to act, i.e., to adjudicate Petitioner's Application. [See DE 10, p. 2]. Filing the Petition did not require the application of little-known areas of immigration law or knowledge of a foreign law or language. See, e.g., Johnson, 416 F.3d at 213 (specialization in immigration not a special factor in appeal to the district court of the Board of Immigration Appeal's denial of asylum as it involved straightforward application of the substantial evidence and asylum standards).
Petitioner argues that opposing Respondents' Motion required a distinctive knowledge in immigration law. [DE 20, p. 4]. In the same breath, Petitioner describes Respondents' Motion as "frivolous." Although the issue raised had not been addressed by this Circuit, and concerned a recent statutory amendment, this Court was able to resolve it with a straightforward application of statutory interpretation. [ See DE 14]. As for the complexity of the issue raised, this Court must note that Ms. Fox-Isicoff, devoted 1.5 hours to reading Respondents' Motion and editing Petitioner's draft response on that issue. [DE 15, Ex. I]. Ms. Worm, an attorney only since November 2003, completed the bulk of the work on this case, a fact that does not support Petitioner's claim that Ms. Fox-Isicoff possessed such specialized knowledge of immigration law that merits compensation above the statutory rate.
Ms. Worm spoke with Ms. Fox-Isicoff about the response for .25 hours, spent 10.0 hours reading, researching, and drafting the response, and then used 1.5 hours to make changes to the response. [DE 15, Ex. 1].
Petitioner also claims his Petition required knowledge of processing times of immigration applications. [DE 20, p. 4]. The current processing times, however, are available to the general public on the government's website, where an individual can check for the type of application in the appropriate processing center. See https://egov.immigration.gov/cris/jsps/ptimes.jsp;jsessionid=bdf2ZaNsAt54 (last visited Mar. 14, 2006).
Finally, there is no record support for Petitioner's claim that there were a limited number of qualified attorneys who would have taken this case at the statutory rate or at an hourly rate below $350 an hour. Petitioner argues there are a limited number of attorneys in this geographic area certified in immigration law, however, for the reasons already stated, the issues raised by the Petition could be adequately handled by an attorney without that certification. As discussed above, mandamus actions and issues of subject matter jurisdiction are not limited to immigration law. Further, Ms. Worm, who is a less experienced attorney, did the vast majority of work on this case. [See DE 15, Ex. I]. Ms. Worm is not a certified immigration attorney, according to Petitioner's own submission. [DE 15, Ex. 5]. On this record, I must conclude there is no special factor recognized by the EAJA to warrant an hourly rate above the statutory cap.
My conclusion that Ms. Fox-Isicoff can not be compensated at a rate above the cost-of-living-modified statutory rate is driven by the narrow meaning Congress and the courts have given to the term "special factor." This conclusion should not be read, in any way, to detract from the obvious competence and professionalism with which Ms. Fox-Isicoff has represented her client in this matter.
I do find, as the Government concedes, that Ms. Fox-Isicoff's hourly rate should reflect a cost-of-living increase. The Consumer Price Index (the "CPI"), compiled by the United States Bureau of Labor Statistics, is the appropriate index for the EAJA cost of living adjustments. See, e.g., Bruland, 742 F. Supp. at 636 n. 8; United States v. Adkinson, 256 F. Supp. 2d 1297, 1312 (N.D. Fla. 2003). The parties agree the applicable CPI-adjusted rate is $158.46 per hour.
The following tables reflect the recoverable attorney's fees:
Allowed hours CPI adjusted hourly rate Total Tammy Fox-Isicoff 12.5 $158.46 $1980.75 Susan P. Worm 32.0 $158.46 $5070.72 Total 44.5 $158.46 $7051.47
Thus, the total amount of attorney's fees that should be awarded is $7,051.47.
B. Costs and expenses.
In addition to attorney's fees the EAJA authorizes recovery of costs delineated in 28 U.S.C. § 1920, as well as other "expenses." See Jean v. Nelson, 863 F.2d 759, 776-77 (11th Cir. 1988). Petitioner seeks a total of $667.72 in costs and expenses. [DE 15, Ex. 6].
1. Costs.
In this case, Petitioner seeks $201.22 in costs. A review of Petitioner's Bill of Costs demonstrates he incurred: $51.22 in copying costs and $150.00 for fees paid to the Clerk of the Court. [DE 15, Ex. 6].
Fees of the clerk are taxable under 28 U.S.C. § 1920(1). Copies are also recoverable under 28 U.S.C. § 1920(4), but the Court must consider whether the prevailing party could have reasonably believed it was necessary to copy the papers at issue. See United States Equal Employment Opportunity Comm. v. W. O., Inc., 213 F.3d 600, 623 (11th Cir. 2000). Defendant has not objected to the amount sought in copying costs, and I find Petitioner reasonably incurred $51.22 in copying costs.
Based on the foregoing, Petitioner should be awarded $201.22 in costs ($150.00 + $51.22 = $201.22).
2. Expenses.
Petitioner seeks $466.50 in expenses. [DE 15, Ex. 61. For expenses to be awarded, they must be necessary to the prevailing party's case. 28 U.S.C. § 2412(d)(2)(A); Jean, 863 F.2d at 778. Respondent has not opposed the expenses Petitioner seeks.
A review of Petitioner's itemized expenses demonstrates Petitioner incurred expenses in the amount of $466.50 for computerized research. These fees are compensable under the EAJA and should be allowed. See Jean, 863 F.2d at 778 (computerized research is compensable under the EAJA).
Therefore, I find Petitioner should be awarded expenses in the amount of $466.50.
III. Recommendation.
For the reasons stated above, I recommend that:
1. Petitioner's Application for Attorneys' Fees, Costs, and Other Expenses Under the Equal Access to Justice Act [DE 15] be GRANTED in part, and Petitioner be awarded attorney's fees in the amount of $7,051.47, costs in the amount of $201.22, and expenses in the amount of $466.50.
2. Pursuant to S.D. of Fla. Magistrate Rule 4(a), the parties shall serve and file written objections, if any, to this Report and Recommendation with the Honorable Patricia A. Seitz, United States District Judge on or before Thursday, March 23, 2005 at noon. The parties shall deliver a courtesy copy of their objections to Judge Seitz's Chambers by the same deadline. Failure to timely file objections shall bar the parties from attacking on appeal factual findings contained herein. LoConte v. Dugger, 847 F.2d 745 (11th Cir. 1998), cert. denied, 488 U.S. 958 (1988); RTC v. Hallmark Builders, Inc., 996 F.2d 1144 (11th Cir. 1993).
RESPECTFULLY SUBMITTED.